Until early this year, San Mateo County reported the names of arrested minors suspected of living illegally in the United States to federal immigration authorities because it mistakenly enforced a law ruled unconstitutional nearly 20 years ago.
After being notified of its error in November, the county implemented a new policy in March, said Stuart Forrest, chief of the county's probation department, which oversees juvenile justice matters.
The new policy still gives juvenile probation officials broad discretion to report youths, "guided by what best protects public safety and the best interests of children."
And that galls immigrant advocates, who say the U.S. Immigration and Customs Enforcement (ICE) shouldn't be contacted at all when it comes to kids.
Supervisor Carole Groom, who sat on a subcommittee assigned to come up with a new policy, said she was "shocked" to learn the county had been reporting all arrested youths suspected of being undocumented.
"What we're trying to do is strike a balance between the public safety and the best interests of the youth," Groom said. "Unless the youth presents a danger to society, we would keep them here. Young people who commit a crime should stay in their local community and either serve that time in the community or for whatever action is taken."
Helen Beasley, an attorney with Community Legal Services in East Palo Alto, said a coalition of advocates, including representatives from her office and the Stanford Law School Immigrants Rights Clinic, contacted the county after hearing from attorneys assigned to represent the youths that a high number of minors were being reported to the federal immigration office. Last year, she said, her office helped 35 reported youths avoid being deported.
A study of 2009 federal data revealed that San Mateo County had the second highest number of immigration referrals in the state, with Orange County having the most, she said.
"It was basically everybody being arrested," Beasley said. "They were booked into juvenile hall and they were referred to ICE, even before they got an attorney." Until this year, the probation department had not kept a record of ICE referrals, Forrest said.
Forrest replied to the advocates' complaint with an Oct. 29 letter stating that the county's policy was consistent with 834b of Proposition 187, approved by voters to prohibit illegal immigrants from receiving public benefits and social services. That provision directed law enforcement officials to "Notify the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status" of persons arrested.
In a Nov. 30 response to his assertion, the advocates pointed out that 834b was declared unconstitutional by a federal judge in 1995.
After legal review, the county conceded the legal advocates were correct, acknowledged Forrest, who became the department's chief probation officer in 2009. "Juveniles were being reported, based on a law that was no longer in effect."
The new guidelines now in effect state that the probation department "shall report the juvenile's immigration status to Immigration and Customs Enforcement when, in the judgment of the officer, (a) the juvenile presents a foreseeable and/or articulable danger to public safety, or (b) reporting the minor's immigration status serves the best interests of the minor."
A probation officer's decision to report someone also must be discussed with a supervisor before any action is taken.
Asked what kinds of offenses might put a youth in the "danger" category, Forrest ticked off a number of crimes, including assault with a deadly weapon, robbery and "some kind of gang-related offense."
Supervisor Dave Pine, another subcommittee member, said he was troubled to hear that the county referred "a lot of juveniles to ICE" when it was not legally required to do so. Since the start of this year, under the new policy, two youths have been reported, he said, a number he's much more at ease with.
"The advocates were justified in calling us out on the high numbers of cases we reported prior to that time," he said. "It should be uncommon, but there are certain circumstances where the balance of public safety justifies reporting."